United States v. Perez
673 F.3d 667
7th Cir.2012Background
- Perez, with Insane Deuces gang members, faced racketeering conspiracy charges; co-defendants were tried first, Perez was mistrial-status and retried.
- During the second retrial, the government renalumbered the indictment and redacted allegations about former co-defendants who were no longer on trial.
- The redacted indictment focused on Perez-only and maintained the offense charged, renumbering paragraphs 13–15.
- Perez did not object to the redaction or renumbering.
- The jury found Perez guilty of racketeering conspiracy and issued a special verdict for sentencing enhancements.
- On appeal, Perez challenged the redaction as a Grand Jury Clause violation, arguing a constructive amendment; the court analyzed for plain error and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redaction/renumbering of the indictment constitutes a constructive amendment | United States argues redaction did not broaden bases for conviction | Perez argues any change to the indictment is a constructive amendment | No constructive amendment; no plain error |
| Whether the redacted indictment violated the Grand Jury Clause under plain error review | United States maintains no plain error occurred | Perez contends the error affected substantial rights | No plain error; conviction affirmed |
Key Cases Cited
- United States v. Penaloza, 648 F.3d 539 (7th Cir. 2011) (constructive amendments require broadened bases for conviction)
- United States v. Miller, 471 U.S. 130 (Supreme Court 1985) (dropping allegations unnecessary to an offense does not amend an indictment)
- United States v. Lorefice, 192 F.3d 647 (7th Cir. 1999) (indictment may be altered if no material change and no prejudice)
- United States v. Soskin, 100 F.3d 1377 (7th Cir. 1996) (narrowing indictment to fewer offenses does not constitute amendment)
- Russell v. United States, 369 U.S. 749 (1962) (modification of indictment as form-only permissible)
- Ex parte Bain, 121 U.S. 1 (1887) (overruled; defective indictment does not deprive jurisdiction)
- United States v. Cotton, 535 U.S. 625 (2002) (Bain overruled regarding jurisdictional effect of defective indictment)